Friday, 26 June 2009

Can Someone Please Tell Us How You Determine What's A 'Legal' Search Engine From An 'Illegal' One?

Can Someone Please Tell Us How You Determine What's A 'Legal' Search Engine From An 'Illegal' One?

from the is-it-like-obscenity? deptI've had a lot of trouble with courts around the globe pinning blame on search engines for what they find, using a questionable interpretation of the law for "contributory" infringement or "inducing" infringement. Such things leave open such a wide spectrum of questions, it basically puts any search engine at risk. People have questioned in the past why Google isn't targeted the same way The Pirate Bay or Torrentspy were, because functionally they're doing the same thing: they index information and help people find it. Of course, some will say that The Pirate Bay is somehow guilty because of the way it acts towards copyright holders, but since when has attitude changed whether the same action is legal or illegal?

Either way it's beginning to feel like judges are determining what is and what is not contributory infringement in the same way "obscenity" is determined, using Justice Potter Stewart's famous "I know it when I see it" test. This is a bad thing, because while some may claim the extremes are clear (which is certainly questionable) there's a large gray area in the middle that is completely unclear. And having a huge unclear gray area means a lot of potential liability on innovators -- leading fewer people to innovate. And that's undeniably bad.

Take for example, the situation going on in the UK, where Anton Benjamin Vickerman and his wife Kelly-Anne Vickerman decided to do something that makes a lot of sense: create a search engine for videos online, indexing a variety of different sites. This was as a part of their company Scopelight, and the search engine itself was called Surfthechannel. This is certainly a useful product. But, of course, the search engine's algorithm has no way of knowing if that video has been put up by the copyright holder on purpose or if it's unauthorized. Even more tricky, how does it determine fair use? So, it did the reasonable thing: it includes everything. Lots of the videos are legal. Plenty are potentially unauthorized. Apparently that wasn't good enough for a UK-based anti-piracy group UK-FACT, who had Scopelight's premises raided, claiming the site is illegal, since people can find unauthorized content via it. Of course, you can find unauthorized content on Google as well.

But you know who's liable for that? Whoever actually put it online. Not the search engine that pointed you to it.

UK-FACT was unable to get criminal charges filed against SurfTheChannel, but no matter, a civil case has been filed instead. So, once again, a judge is going to have to determine why a third party website can be guilty of others' infringement based on a highly subjective "I know it when I see it" set of reasons. This is a bad deal for everyone.